President Obama may be poised to claim an unprecedented executive
power. Or not. It depends on whether you credit official denials
from White House Press Secretary Jay Carney or public statements
from high-ranking Democrats. The monarchical power in question is
the ability to raise the debt ceiling at will. It involves bypassing
the House of Representatives, which currently has the constitutional
authority to initiate all revenue bills.

In what could be a trial balloon, top Democrats from Senate
leader
Harry
Reid to House Speaker
Nancy
Pelosi and former president
Bill
Clinton are urging Obama to sidestep the
debt-ceiling battle with Congress by invoking a controversial
constitutional clause, section 4 of the Fourteenth Amendment. They
want Obama to claim authority under that clause to unilaterally
raise the debt ceiling, perhaps through an executive order.
Executive orders have the force of law without requiring the
president to go through a legislative process. So far, purely
practical reasons have led Obama to decline.

But the upcoming debt-ceiling crisis will be ugly, and what is
politically practical can change quickly. On December 31, the
federal government bumped its head against a ceiling of $16.394
trillion. This means it is unable to issue new debt to make payments
on existing debt; instead, Treasury Secretary Tim Geithner is
resorting to what he calls "extraordinary measures" such as
shuffling about federal-employee pension funds in order to buy time.
By about mid-February, time will be up; the federal government will
face massive payment delays and possible defaults. And yet,
Republicans in the House will not raise the ceiling unless Obama
commits to deep spending cuts. He refuses to do so.

Many fiscal conservatives and libertarians are undisturbed by
this impasse, even though the immediate fallout would be regrettably
painful. Gridlock sounds good when the alternative is the runaway
train of entitlement spending that is bankrupting America. But the
gridlock could be short-lived. The longer a standoff drags on, the
more loudly Democrats will raise the Fourteenth Amendment—and the
more tempted Obama may be to substitute a constitutional crisis for
a financial one, especially if he has a better chance of winning the
former.

Seizing the power to raise the debt ceiling would be a disastrous
expansion of presidential authority. Two basic restraints on
executive power are established by the Constitution's tripartite
balance of power: the competing authorities of Congress and of the
United States Supreme Court. A unilateral move by Obama could weaken
both.

Generally speaking, a reduction in any government power is cause
for celebration. But in this case, the power would not be reduced.
It would be transferred wholesale into executive hands, which could
then work without constraint. It would increase the prospect of a
dictatorial America.

Executive authority and a competing Congress

Article 1, section 7 of the
Constitution
states, "All bills for raising Revenue
shall originate in the House of Representatives; but the
Senate may propose or concur with Amendments as on other Bills."
(Emphasis added.)

The House's monopoly on raising revenue was intended to be a
powerful brake upon the executive. The president can sign executive
orders and create executive agencies (like the Department of
Education) with administrative policies that regulate the minutiae
of society. Without funding, however, the measures and agencies
falter. Thus, congressional control of revenue bills is one of the
few remaining solid obstacles to the presidency becoming monarchical.

Unfortunately, there is some legal grounding on which Obama could
challenge the absolute authority of Congress over revenue bills.
Section 4 of the
Fourteenth
Amendment (1868) reads,

The validity of the public debt of the United States, authorized
by law, including debts incurred for payment of pensions and
bounties for services in suppressing insurrection or rebellion,
shall not be questioned. But neither the United States nor any State
shall assume or pay any debt or obligation incurred in aid of
insurrection or rebellion against the United States, or any claim
for the loss or emancipation of any slave; but all such debts,
obligations and claims shall be held illegal and void.

This is a Reconstruction amendment; that is, it has a specific
historical context. It was adopted in the wake of the Civil War
(1861—1865) in order to facilitate the reformation of the
American South. Section 4 aimed at guaranteeing Union loans while
repudiating Confederate debt. Nevertheless, the United States
Supreme Court later ruled that the section's language had broader
application. In Perry v. U.S. (1935), the
majority
opinion stated, "While [the Fourteenth Amendment] was undoubtedly inspired by the
desire to put beyond question the obligations of the government
issued during the Civil War, its language indicates a broader
connotation." The court found it to be "confirmatory of a
fundamental principle which applies as well to the government bonds
in question [in that 1935 case]."

Constitutional attorneys could, however, argue cogently against
the presidential use of Section 4. For example, they could point out
that the section refers to honoring current debt, not to creating
new debt. But during a national emergency, when the president
assumes
extraordinary
powers, Obama's chances of success will be enhanced.

His chances are also enhanced by the current strategy being
pursued by top Democrats. In stirring up public debate, the
Democrats are engaging in what is called "popular constitutionalism"
or "democratic constitutionalism." Although that term is imprecisely
defined, an essay entitled
"Popular
Constitutionalism and Relaxing the Dead Hand: Can the People Be
Trusted?" by law professor Todd E. Pettys offers a general sense:

A growing number of constitutional scholars are urging the nation
to rethink its commitment to judicial supremacy. Popular
constitutionalists argue that the American people, not the courts,
hold the ultimate authority to interpret the Constitution's many
open-ended provisions whose meanings are reasonably contestable.

To some degree, popular constitutionalism uses democracy to
replace the traditional role of the Supreme Court in interpreting
the Constitution. The Democrats are attempting to sell a specific
interpretation of section 4 to the public. The more accepted their
interpretation becomes, the more pressure is exerted on the Supreme
Court to agree. Popular opinion thus begins to trump the judicial
restraint on executive power.

Moreover, Obama could always follow ex-president Clinton's
advice. During the 2011 debt-ceiling crisis, the
New
York Times (July 25, 2011) reported that
Clinton had "identified a constitutional escape hatch" for Obama:
the Fourteenth Amendment. If he were still president, Clinton
claimed he would invoke the amendment "without hesitation" and
"force the courts to stop me." An executive order can go into force
almost immediately; courts are slow. Even if the Supreme Court ruled
against an executive order, political realities would favor Obama.

Conclusion

In 2011, the president rejected the constitutional option because
he had doubts about it being "a winning argument." Many top
Democrats expressed deep disappointment. Obama did not expand on the
explanation, but his administration has a history of eschewing
conflict in the Supreme Court. Moreover, Obama must be aware of how
badly creditors might react to the prospect of loaning more money to
the U.S. government without having the usual congressional guarantee
of repayment. Thus, an executive order might precipitate precisely
what it was meant to prevent: the inability to pay federal debt.

The debt-ceiling crisis of 2012-2013 differs from that of
2011, however. In 2011, a compromise deal was eventually reached. A
similar compromise seems less likely today.

Obama has previously sought the power to unilaterally raise the
debt ceiling. He slipped it into the very first round of the current
negotiations with Congress. The
Washington
Post (Nov. 29) reported,

GOP aides said Obama is seeking to permanently enact procedures
that were temporarily adopted in the summer of 2011 that allow the
White House to unilaterally increase the debt ceiling unless
two-thirds of lawmakers disapprove.

That process, initially proposed by McConnell, was not intended
to become permanent. By trying to make it so, Obama is seeking to
avoid another damaging battle over the debt ceiling that would again
risk a national default. However, this change would also deprive
Congress of its historic authority over federal borrowing.

Predictably, Obama's demand was rejected outright by House
Speaker John Boehner. A Republican House will never give up the best
leverage it has on the executive. If no compromise is reached on the
debt-ceiling crisis, then Obama's invocation of the Fourteenth
Amendment will become more likely. It will be a giant step toward
making Obama "His Majesty, the President."

Wendy McElroy is an author for The Future of Freedom
Foundation. This article first posted at
fff.org